The answer is that actually I’ve already been up for about two and a half hours, having been startled awake by the oddest dream wherein I was on the phone in a yelling match with Hugh Heffner, and I’ve been padding around the internet since about 4 this morning. The light’s just coming up now and it looks like it’s going to be a beautiful day. I hope you all are spending it with friends and family, and if you’re here reading this, I’ll hope you’ll take a moment to reflect on the fact that although things are not perfect here in the US, my films have never faced the sorts of problems with the government that they’ve faced in places like Australia, Great Britain, Canada, Italy, or Germany. Now on with the show!

I first started thinking about this post when we started selling our Real People, Real Life, Real Sex series on Amazon. This was about the same time that Kirby Dick’s MPAA expose doc This Film Not Yet Rated came out on DVD. Kirby and I have rather different takes on the MPAA, and whether or not the MPAA functions as a de facto censorship body; and I think This Film Not Yet Rated, while making some valid points about the vagaries and inconsistencies of the MPAA’s rating system, does a real disservice to the conversation around grown-up movie making by conflating the function and scope of a trade organization with censorship and by promulgating myths about the NC-17 rating.

Of course Dick’s film was enthusiastically received by the indie film community, and not hard to understand why. Indies films often deal with provocative subject matter, and the idea of the Big Bad MPAA destroying maverick films and maverick filmmakers by assigning the dreaded NC-17 rating is an appealing one, or certainly one I found appealing, especially in light of the sort of violence that receives an R-rating.

But in the course of making and marketing our films, I’ve come to believe that the way the system works actually suits exploitation filmmakers like me and Kirby Dick to a T. To understand why, let’s first get a working definition of an “exploitation filmaker.”

Unlike most other counties, here in the US there is no government mandated rating and censorship process. In counties like Australia or the UK, before a film or DVD can be released a film must be submitted to a government censorship board, which decides whether or not a film can be release, and if so, what rating it receives.

There has never been any such requirement here in the US. So even back in the days of the Production Code (aka Hays Codes,) there were films that were not produced within the MPAA system and were not released with an MPAA seal. Many of these films would have qualified for a seal, but for whatever reason did not go through the MPAA system. But for the purposes of this discusion, we’re going to define exploitation filmmaking as films that go “too far” to be granted a Production Code seal, but no so far as to attract attention from law enforcement. As such, “exploitation filmmakers” do a sort of creative arbitrage between what the MPAA will not permit and what the law will not allow, and the days of the Production Code, this is a healthy little niche.

But with the advent of the four-tiered system (G, PG, R, X), this niche threatens to collapse. The four-tiered system wipes out the idea that anything is off-limits in an MPAA rated film; sex, violence, it’s all fair game now, and exploitation filmmakers are faced with the prospect of competing with films like Bonnie and Clyde (violence) or Last Tango in Paris (Sex) or A Clockwork Orange (both!) This is not good news for people like me and Kirby!

But who comes along to save us? The MPAA.

I believe the decision by the MPAA not to trademark the X rating was made with the best intentions. I believe the MPAA’s failure to respond to the effect of the co-opting of the X-rating was stubborn. I believe introduction of the NC-17 as a trademarked “adult only” rating was too slow and when it finally came it was handled clumsily. But I also believe that in combination these things saved exploitation filmmaking. Here’s why.

Whether the reasons are real or imagined, the fact that NC-17 is considered a box office kiss of death, the result is a reestablishment of the space between what Hollywood will do and what can be sold in legitimate venues. Occasionally a film will take the NC-17 rating (Lust/Caution, Marie and Jack: A Hardcore Love Story) but more often than not, films that go “too far”, that is to say past what would receive an R-rating, are released without an MPAA seal. Everything old is new again!

And even better, now you can beat the drum, “Unrated! Uncensored! Uncut!” The subtext is clear, “We’ve got the good stuff! Come and have a look at what those moralists at the MPAA didn’t want you to see!” Wow that must be hot stuff, right? And just like the 60s, when MPAA studios cut and ran on the Production Code when they thought there was money in it, MPAA studios do the same thing today. From John Frithian’s 2007 speech:

[W]e call for our studio partners to abandon the practice of releasing unrated DVDs of the same movies that played in our theatres with a rating. We know that unrated DVDs—unlike unrated movies in our theatres—can do brisk sales. But it is frankly galling to see marketing campaigns designed around the very fact that a movie is “unrated and uncensored.”

Of course the “uncensored” part is just a lie. When the MPAA assigned the NC-17 rating to Marie and Jack: A Hardcore Love Story, Senior Rater Tony Hey told me he thought Marie and Jack was “a well-made, entertaining film that really delivered the goods—just the sort of film the NC-17 rating was made for.” There was no request that we alter the film in any way, and the NC-17 rating is entirely appropriate. In fact, given the laws in this country regarding showing sexually explicit material to minors, it’s impossible to imagine the film earning any other rating.

But I do wonder if we might start “tarting up” the marketing for our films. The Independent Film Channel was using “Unrated, Uncensored, Uncut” for a while, and even though they never aired anything that would have earned more than a PG-13 or maybe an R-rating, the tagline did make them sound edgy and rebellious. Maybe that could work for us too!

But for the foreseeable future, the NC-17 rating remains a dead zone. We didn’t see any benefit from getting a rating for Marie and Jack, so our next five have been released without an MPAA seal. Lust/Caution wasn’t a failure, but until there’s a real blockbuster released under the NC-17 banner, I don’t imagine we’ll see any significant studio efforts in that direction. Variety reports a studio exec at the same 2007 ShoWest at which Frithian spoke as saying, “There really needs to be a good, commercial movie that can break through the tide. The problem is, most of the NC-17 films have been niche or arthouse. It’s unclear whether the problem is the rating or the movie.”

And until then, DVDs films like The Dreams, 9 Songs and Shortbus will continue to be marketed as the “unrated version”, as if there’s another, less sexy version the MPAA tried to force on us, save the heroic defiance of the producers.

Section II)A has explored eroticism and sexuality in cinema from one side of the “exploitation” space, the boundary between mainstream Hollywood film and exploitation cinema. In the next section II)B) Landmark cases in obscenity law and the long shadow of language will look at instances when decisions about eroticsm and sexuality were made in the courts and backed up by the full power of the state.

Till then, happy birthday America and happy Fourth of July to all of you!

9 Responses

Interesting post TC. Not sure if this has been covered in your previous posts and I have missed it or will be covered in future ones and if it’s just me ( a foreigner…) who would need this spelt out, but would it be worthwhile saying more about who the MPAA actually is, how they operate, do they have panels who make decisions, where are they based, what is the process for having your film your rated?

I think your position is starting to become a bit more clear to me and I hope you’ll bear with my continued partial devil’s advocate position – trying to anticipate objections to what you’re saying and get clear on the change you want to see. I’m starting to understand that you really don’t have much problem with the MPAA ratings practices. Kirby Dick and other critics of the MPAA do believe the MPAA privileges studios (ie the members) over independents (or, more charitably, are more open to negotiation with them) – and you may be providing a useful counterexample to that argument – more examples would be good. Perhaps more significantly for supporters of “grown up” movies, though, is the charge that the MPAA board applies the ratings in a way that makes violence acceptable “PG13″ and “R” material, but sexuality not acceptable. You seem to accept this. Many people would like to see violence as less acceptable and sensuality more acceptable at those ratings. From reading this, my impression is that you find the ratings and the mores reflected in how they are applied appropriate, but believe the NC-17 has just been neglected as a rating?
I also found myself wondering about the MPEA – one common argument for the MPAA’s more relaxed attitude about violence over sexuality is that violence travels well – ie, the global market for action-driven spectacle is proven, while the market for “grown up” sexuality is incredibly tricky and variable by region and culture – ie it’s harder to rationalize and exploit by companies with global scale. I suspect most critics consider actions of the contemporary MPAA in our domestic market as inseparable from the goals of the MPEA in supporting/protecting the position of the conglomerates (ie the members) in global entertainment – but with unfortunate effects on the sorts of movies that are widely distributed in this country.
In other words – what you call a “conflation” here, I suspect, many people would not see as a conflation, but rather the heart of the problem: that a trade association IS engaged in cultural policy – deciding how to describe these films in ways that drastically shapes the marketing and exhibition possibilities and that very fact does deform the conversation we’re able to have about the industry’s categories and practices. To put it yet another way – would “R” mean something else if a different group was adjudicating it? Not an industry trade group, but a citizen group, or group of artists, or the NEA, etc. I don’t have much of a position on who/how – but this seems like a useful thought experiment – if we think those other, different groups would somehow reflect the “interests” or ideologies of their source (eg artists would be too arty), then surely an industry group reflects, at least somewhat, the interests of its members.

Whoop. After this morning’s burst, I fell asleep again. Back awake now. What day! Summer’s finest!

I hope the next section, the section that looks at content control under threat of violence will round out the story a little more, but for the time being a couple of thoughts.

The MPAA would say they do not advocate for a cultural position, and in fact I have spoken to individual board members who find the disparities in the treatment of violence and sexuality personally offensives.

But they would go on to say that they job is not to impose their own values, but to assign a rating that reflects what the “average American parent” would think, something akin to the “reasonable man” standard in law. In other words, change societies attitudes towards sex and violence that the MPAA rating will change.

Yes, this gets rather chicken and egg, but I can’t help but recall that when more conservative forces attack movies, music, videogames, the defense seems to always include “these movies/music/games reflect society, they don’t shape society.”

My own opinion is that both are true, but there is a particularly pernicious way the the complainers have a disparate effect, especially in in so-call “web2.0″. I’ll get to that in section II)B)D)2) The right to take offense and the complaint-driven internet.

On the basis of my own experience, I’ll push back considerably harder on what does or does not travel. In other countries me films would recieve or have received rating infinitely more restrictive than the MPAA’s NC-17, and these rating are enforced (quite literally in some cases) at the point of a gun.

Today’s a good day to point that out. I don’t thing the MPAA is perfect or blameless. And we’ll be getting into areas of the law that are so bizarre you wont’ believe it.

None the less, I stand here on the Fourth of July to tell you I believe I have more freedom to do what I do here in the United States than I would have in any other country in the world.

In any other country I would be required to submit my films for review by government agents and in more a few of those countries my films would be subject to ultra-restrictive law on where they could be screened or DVDs sold, or even if they could be screened at all.

And not to put too fine a point on it, but according to IMDB, Dick was willing to cut Sick: The Life & Death of Bob Flanagan, Supermasochist in order to get it through the British Board of Film Classification, a process that is legally required to screen films and sell DVDs in the UK. IMDB lists the running time for the US release as 90 minutes, but the UK-18 edition is listed on Amazon UK as 86. Maybe it’s just bad data, or maybe Dick cut four minutes out of his film to satisfy the Office of Censorship (which is what the BBFC used to be called.)

That’s kind of the long and the sort of it, isn’t? If the if the US had a rating system had force of law (aka censorship,) Dick and other who release NR while at the same time throwing accusations of censorship at the MPAA wouldn’t defy the censors would they? They would make the cuts required to pass the government censorship board.

If the goal is to make the most patriotic argument, I’ll gladly give up the ground. My argument is more along the lines that – irrespective of the relative freedom of the American system compared to everyone else’s flawed systems – if the goal is to change the culture around grown-up, mature images of sexuality in the US then the MPAA does play a role. I don’t really believe in chickens or eggs arguments either, but I do believe in networks and locii of power and bottlenecks. My sense of the BBFC is that it is quite a bit more permissive than the MPAA about content, but more restrictive in that it can block screenings of unrated films. Also that it is non-governmental and basically a committee constructed much the same way as the MPAA’s ratings board – industry insiders – BUT subject to public scrutiny. I’m not an expert on the realpolitik workings of it, though. More comparisons with the BBFC might be instructive, esp as a system with similar structure but more legal standing.
That aside, I would say it’s worth considering if the “average parent” standard at the MPAA is truly analogous to “reasonable man” precisely because it is not a legal standard; it is not subject to open debate or precedent, it’s negotiated by industry insiders and a small group of people that don’t seem especially representative of the citizenry – their protestations to the contrary – and in any case, as a matter of authority (and law) have an obligation NOT to be representative of the “culture” or citizens because they are retained by the industry, after all. My limited understanding of the Sick case was that the “penis nailing” scene was chopped (so to speak) because it might inspire copycats…I think that’s somewhat ridiculous (although I suspect the MPAA would judge even more harshly than the British Board) but at least the argument is out there…and the film is still awfully graphic and effective without that scene. I’m not defending Dick’s NR game-playing in the US, by the way, and ANY system begs to be polarized against and made a straw man. A much more interesting question to me is – how many screens did Sick make it to in the US? How much $ did it make? How did that compare to the UK, even with that edit? What was the cultural impact? I don’t know those details. (It grossed $150-200K in the US according to online sources.) In matters of cultural policy (which I consider ratings to be) I just think there is a role for the public. To me, that would be even more patriotic.

This is where you and other simply don’t understand the MPAA, or the ratings systems of other countries. The MPAA would have given Sick an NC-17 with no edits. NC-17 is functionally equivalent to the BBFC’s 18 rating, with one important exception: In the US you can release a film without a rating, in the UK you can’t. If you don’t make the edits the BBFC asks for, they can and do ban films from being screened and DVDs from being sold.

In addition to the BBFC 18 rating, there is also an 18+ rating which means no public screening and DVD sales can only be through specially licensed shop, or even more restrictive, the BBFC can insist that material be remove or else they will refuse any rating what so ever and the film cannot legally be screened and DVDs cannot legally be sold.

This is so very far away from voluntarily submitting to a system that assigns “at worst” the NC-17 rating, which is two tiers down from the BBFC’s more restrictive ratings of R18 or Refused. There is simply no comparison of the treatment of sexuality under the BBFC system verse the MPAA system.

Furthermore, I’d argue that in many cases (mostly around violence) the BBFC is more restrictive in as much as violence will garner an R-rating in the US, leaving the choice up to parent will garner ratings from the BBFC, depriving parents of the choice of whether or not they can take their children can see it. For example, Saving Private Ryan is rated 15 by the BBFC, and that means the government, not parents decides whether or not a 14 year old can accompany his grandfather or uncle to see the film play.

As far as accusing the “average parent” standard of not being a “legal standard” that’s simply a red herring. Unlike the BBFC ratings, MPAA rating have no force of law. Me, Kirby Dick or anyone else who does not think their film will be served by submitting to the ratings process and other requirements of releasing a film/dvd with an MPAA seal is free eschew the process and release their film without an MPAA rating.

And if you want to get into question of public scrutiny, I would invite you to make a film with an “NC-17″ level of violence and/or sexuality, and then submit it to the MPAA and the BBFC. The workings of the BBFC are the very definition of whimsical and opaque, and of course they are backed up by the power of the state.

I understand this attitude of the MPAA is the Great Bugbear is deeply entrenched, and that’s what leads to “guessing” the the MPAA would have treated Sick “even more harshly” than the BBFC. But seriously: what could possibly be more “harsh” than using the power of the state to have material removed from a film? The very “worst” thing the MPAA would have done was give Sick an Nc-17 rating, which means “not suitable for children, even when accompanied by an adult”. Again, this is functionally the same as the 18 rating given by the BBFC after the penis nailing scene was removed.

And of course, and one more time, the MPAA rating has no force of law. The unedited version was released in the US. Only the censored version is available in the UK. In the UK it is illegal to screen or sell DVDs of the version released in the US.

As far as the box office goes, IMDB says Henry and June grossed $11M, which would tend to add weight to Frithian’s claim that NC-17 is not an obstacle to box office receipts. And that brings me back to my suspicion that for films like Sick et. al, railing against the MPAA is simply a marketing tactic for micro-budget exploitation films, and one that’s quickly abandoned when it’s expedient (BBFC, etc.)

I’m not sure what you mean about it being “more patriotic” if the public had a larger role. What are you proposing? Something like the citizen panels that select text books in Texas? That’s exactly what was going on in the 20s when Hays was hired on by the MPPDA; a hodge podge of local boards, prosecutors, whatever banning this and that on a state by state or even city by city level. Count me as one person who’s not especially interested in having my First Amendment Rights put up for a vote on a case by case basis.

Of course that’s exactly how obscenity statutes work, and we still have them today, and they’re an embarrassment to our country. But let’s not get ahead of ourselves! That’s section II)B! Happy Fourth of July, obscenity statutes and all!

If it is true (and verifiable) that Sick would have received an NC-17 with no caveats, then it is a good example – could any film up to and include porn get the same treatment? I’m asking for real – I don’t know. Will they rate anything? As I said, this kind of detailed comparison adds a lot to this argument. I agree that the ability to release unrated films should be protected (by law, of course, so perhaps the law is not always a problem…) – and that is a flaw of the British system. I’m not defending the British system. But why does that preclude a more democratic or at least public system of discussing ratings in the US? I am willing to defend an idea that the public have a more clear voice in helping define ratings (not censoring individual films) – for the same reason that I do want my school’s PTA involved before the school library starts weeding out books. I can affect the PTA, I can’t fire the librarian. The Texas text books case is instructive, but for the opposite reason you give – it is a body of patronage appointees and a chance for the politicians to pander to the hard right base in Texas. To some extent it does reflect (unfortunately) the will of many people in Texas – including most of my Baptist-trapped family. But at least is is public, with public hearings and debates. It has been devilishly hard to break that group up but it has been subject to enormous pressure. It’s a tough nut to break, though, because it is protected by the conservative-dominated executive and legislative branch. In any case, believe it or not, I’m not an unreconstructed socialist on these grounds – the market square is usually more inventive than the castle keep – but neither is totally free. I just think skepticism toward concentrations of power is warranted whether corporate or statist.

Anyway, all of this is a little tangential. I’m still trying to work out the larger argument. I have assumed your narrative was this: a MPAA rating system has emerged since the late 1960s that flawed but market oriented, but it is superior to a more flawed and ultimately restrictive Google/Amazon heuristic system subject to invisible manipulation in the code/database (and market deforming). That argument would seem to be where your interest lies, as a filmmaker, and I’m still waiting for Google to raise its head. I think that’s a compelling argument. But it isn’t necessary to make the MPAA look like the epitome of free speech and free market principles to get there – and if you suggest something like that in the currently scheduled locations for this talk, many people are going to stop listening, for better or worse. I think the comparative argument is much stronger, esp if you turn to the really antidemocratic processes of some Web architecture.

The MPAA will rate any film submitted to them. They have a sliding fee scale depending on budget of the film. Submitting a film to this process is entirely voluntary.

By contrast, to screen a film or sell DVD in the UK the distributor is required to submit the film to the BBFC, pay to have it reviewed, and then make changes as demand by the BBFC.

Please don’t misunderstand. I’m not holding up the MPAA as the epitome of anything. They are a trade organization like the BBB or Chamber of Commerce, organized to look after the interests of their stakeholders, the end.

But speculation such as your “would have been treated more harshly” by the MPAA rears its head over and over in spite of the fact that there is no “upper limit” (or lower limit if you like) on what the MPAA will rate. You are far from alone in “imagining” that the MPAA would treat this or that film more harshly than the legal mandated systems in other countries.

NC-17 is upper rating in the MPAA system, equivalent to the 18 in the BBFC system or R18 in the OFLC system and simply means “No one less than 18 years of age.” It is not a judgement on the quality or content of the film in question. It places no limitations on where the film can be screened or DVD be sold. Persons under 18 years of age are excluded by voluntary agreement of NATO members, but no MPAA rating have force of law.

Anyone can avail themselves of the MPAA process if they think carrying an MPAA seal furthers their end. That include Rob Black and John Stagliano. It includes anyone.

Conversely, no one is obliged to participate in the MPAA system, though there is some evidence to suggest that there is a marketing benefit to certain kind of movie making a “big deal” out of “flouting” the system. Of course this “flouting” of an utterly voluntary system exists only in the minds of people who are ignorant of what the system does and does not do, and one of the things the MPAA system never does (unlike the BBFC, OFLC and others) is demand that material be removed before granting an adults only rating. One of the things the MPAA system never does is tell a produce that their film cannot be screened or sold unless material is removed. This stands in stark contrast to the BBFC, OFLC and other systems in other countries.

As far as the school board example I think it runs off the rails when we actually make the correct comparision. A school board determines what DVDs a school system might have in it’s library, not whether or not a DVD can be offered for sale. The BBFC, OFLC, or other government systems decided whether or not a DVD can be offered for sale anywhere, to anyone for any purpose, whether it be a school library or private DVD collection. The MPAA does neither of these. You can produce and then screen and/or replicate anything you want and never had any involvement what so ever with the MPAA. School boards are about local control of schools. Government censorship boards are about legal control over what films can be screened and what DVDs can be sold.

Again, that’s not holding up the MPAA as the epitome of anything. It’s simply factually describing what MPAA does and then comparing that to other systems, including the government enforced systems in other countries and the freedom that we enjoy in this country to produce and sell movies without submitting for review by any authority either public or private.

I take you point about skepticism toward concentrations of power, but without a factual understanding of how different systems work and what powers they do and do not have. But if you’re offering that their should be “more involvement by the public” again I’d ask what form that involvement would take, and what if any force of law you would give this “public representation.” The MPAA created the PG-13 rating in response to public input, and since then has created a catalog of reasons that are appended to the various ratings so that, for instance, a parent not particularly bothered by sex but opposed to exposing their children to violence can make reasonably informed choices about what films they might allow their children to see.

Again, I think a lot of your questions about my position will be answered and a certain degree of continued suspicion of the MPAA will be allayed as we work our way through the next section on obscenity. The concept of obscenity laws is quite literally the involvement of the public in deciding what can and cannot be seen, backed up by the power of the state. But because this attitude that the state has the right to make these decisions is so deeply embedded in our collective psyche, I believe that many (most) people wildly underestimate the “chilling effect” that these laws have had and continue to have on the exploration of sexuality in cinema.

I know I’m pushing back hard, and I hope that as I do and don’t come across as rude. I know that by making the case that the MPAA has served to a bulwark against deeper government involvement in the regulation of the content of cinema (as is the case in so many other countries) I’m offering a pretty radical point of view, and doubly so coming an exploitation filmmaker who is supposed to rail against the tyranny of the MPAA at every turn. But my point of view is born of our own experience with the threat of prosecution in this country, and our experience of actual censorship in other countries.

The other thing I’d add is that there’s a certain laziness inherent in the urge the film community has to drop all of this at the feet of the MPAA. Overwhelmingly the letters the MPAA gets from the public are complaints that the ratings system is too lax. Perhaps you and I agree that the sight of a man’s penis shouldn’t automatically trigger an NC-17 rating, but have you ever written a letter? Have you urged people who agree with your position to write a letter? Without knowing it, I personally took up NATO president John Frithian’s challenge to “take the NC-17 rating seriously.” Quinten Tarintino had the same opportunity with one of his latest efforts, which received an NC-17 in its original cut. But instead of taking the adults-only rating, he made some cuts and went for the R-rating.

As a producer I’m sympathetic to this, or to Kirby Dick chopping 4 minutes out of Sick to satisfy the BBFC. But things will not change without people taking risks and making sacrifices. Tarintino could have followed Ang Lee’s lead and said “This is a movie for grown-up and the NC-17 rating is appropriate. I will release this film as I envisioned it.” Kirby Dick could have included his experience with the BBFC in This Movie Not Yet Rated. But instead they did what they did, which only reenforces the system as it is.

I’m really thankful for your time to play devil’s advocate, especially over the holiday weekend. I hope I don’t let you down with what’s next!

Continuing the Discussion

[...] It’s not that their aren’t exceptions. San Francisco’s Kink.com was early to the game, offering BDSM oriented content via the internet at at time when traditional distribution channels regarded bondage and other non-consensual theme-sex play as a one-way ticket to an obscenity conviction. (There’s that all important social arbitrage again. See the previous post The MPAA Took My Baby Away!) [...]

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About The Intent to Arouse

In a world that seems awash in sexualized imagery, why is it that so little of this imagery speaks to the common pleasurable reality of sex? Award-winning filmmaker Tony Comstock takes us into the legal and business realities that shape and too often warp the sexual imagery we see. Drawing on examples from Hollywood’s history [...]more →